COSTS AFTER AN ACQUITTAL
A separate decision after the criminal case.
A person who is acquitted may ask the court for an order that reasonable defence costs be paid from public revenue. The question of costs is separate from the verdict and is governed by statute, established case law and the court's discretion.
MCS can advise you on your application for costs following an acquittal. The court may consider the way the suspicion arose, the defendant's response during the investigation, the conduct of the proceedings and the circumstances in which the acquittal was reached.
THE LEGAL FRAMEWORK
Statutory Framework for Criminal Costs
The power of a court to grant legal costs to an acquitted defendant is structured by statute. It does not rely on common law civil rules:
Section 4 explicitly empowers Magisterial, District, and High Courts to order that a defendant's costs be paid out of public revenue upon acquittal.
Governs summary offenses and provides the specific mechanism for Magistrates to issue cost orders.
Regulates the broader procedural framework of criminal trials and provides supplementary powers for cost orders in appeals.
APPLICABLE PRINCIPLES
Applicable principles on costs
The general rule is that the court should normally award costs to an acquitted defendant unless there are some reasons to deprive him of such costs. Those reasons include:
- Whether he has brought suspicion upon himself.
- Whether his conduct has misled the prosecution into thinking that the case against him is stronger than it is.
- Whether there is ample evidence to support a conviction but it is quashed on a technicality.
THE COURT'S ASSESSMENT
The defendant's general conduct
In Tong Cun Lin v HKSAR FACC 1/1999, Litton PJ, when giving judgment of the Court of Final Appeal, elaborated on the "general conduct" of an acquitted defendant:
"What then are the governing principles? When a defendant has been brought to trial upon particular charges and is then found not guilty it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal - the averments constituting the charges having been found by the jury as not amounting to the crimes alleged - it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict. The person in the best position to weigh those matters is clearly the judge himself."
EXERCISING THE DISCRETION
Factors considered by the court
If a defendant's own ambiguous, evasive, or highly questionable conduct prior to the charge reasonably brought suspicion upon themselves, the court will likely order them to bear their own costs. The test is whether the defendant acted in a way that practically invited an investigation.
Costs will be denied if the defendant deliberately misled the police or prosecutors. For example, staying completely silent during an investigation is a right, but actively fabricating a false story or hiding an alibi until the absolute last minute of the trial misleads the prosecution into believing their evidentiary case is much stronger than it actually is.
A clear distinction is made between a defendant who is fully vindicated by the evidence and one who escapes conviction purely on a procedural loophole. If the acquittal happened because of an administrative error, a defect in the wording of the charge sheet, or the exclusion of crucial evidence on a technical rule of law, the court will routinely refuse to award costs.
The court assesses how the defendant behaved inside and outside the courtroom. Frivolous applications, deliberately wasting court time, or non-cooperation that prolonged the trial process will count heavily against a cost award.
ASSESSING THE AMOUNT
The Taxation Framework and Rules
Winning a costs order in a criminal court only settles your entitlement to be paid out of public revenue. It does not automatically validate the amount billed by your defence team.
Criminal taxation is explicitly regulated by the Costs in Criminal Cases Rules (Cap. 492A).
For cases originating in the Magistrates' Court or the District Court, the formal claim for costs must be filed with the District Court Registry. The Registrar of the District Court (or an appointed taxing officer) serves as the taxing authority. For higher court matters, the Registrar of the High Court acts as the authority.
Under Section 3(2) of the Costs in Criminal Cases Ordinance (Cap. 492), an order for costs made by a Magistrate cannot exceed HK$30,000 unless the defense and prosecution explicitly agree on a higher amount, or the Magistrate formally orders that the costs be taxed.
HOW MCS CAN ASSIST
Preparing and pursuing the costs application
MCS can advise on whether a defence costs application should be made, identify the matters relevant to the court's discretion and prepare submissions addressing the investigation, trial and basis of the acquittal. Where an order is granted, we have extensive experience and can guide you through the entire taxation process.